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New States and Constitutions. 




AN ADDRESS 

BEFORE 

THE LAW SCHOOL OF YALE UNIVERSITY, 


Monday, June 19, 1911, 


BY 

George W. Wickersham, 

ATTORNEY GENERAL OF THE UNITED STATES. 

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NEW STATES AND CONSTITUTIONS. 

Current discussion in and out of Congress concerning 
the admission as States of the Territories of Arizona 
and New Mexico, has taken a wide range, and has 
involved much debate concerning the nature and eifect 
of many of the provisions contained in the constitu¬ 
tions proposed by the new States respectively, not 
only as applicable to them, but as institutional feat¬ 
ures which may be applied to other communities. 

That a frequent recurrence to fundamental princi¬ 
ples is necessary to preserve the blessings of liberty 
and keep government free, is recognized and declared 
in the constitutions of more than one of the States.^ 

It is a fortunate circumstance, therefore, that the 
nature of these proposed constitutions should have been 
so prominently brought before the people as to provoke 
discussion, not only of their provisions, but of the 
fundamental principles upon which our system of 
government is founded and maintained, and of the 
nature and effect upon them of the conceptions under¬ 
lying the organization of one at least of these proposed 


1 See, e. g., Constitution of Vermont, 1777, Chap. I, par. XVI; Vir¬ 
ginia Bill of Rights, 1776, Sec. 15; New Hampshire Constitution of 1792, 
Part I, Art. 38; Pennsylvania Constitution of 1776, Declaration of 
Rights, Sec. XIV. 



2 


new States, and wliich, to a certain extent, have been 
already adopted in some of the admitted States.^ 

While a free, enterprising and progressive people 
will not reject improvements simply because they 
are new or untried, yet thoughtful Americans 
must ever consider any radical changes proposed 
in their government, state or national, in the 
light of Washington’s warning to resist with care the 
spirit of innovation upon the principles of the institu¬ 
tions established by the Constitution of the United 
States, lest alterations in the forms of our fundamental 
structures of government impair the energy of the 
“ system and undermine what cannot be directly over- 

thrown.” 

The Constitution of the United States estab¬ 
lished a union of thirteen States, each of 
which had been separately organized under a 
government republican in form ; that is to 
say, a government in which it was recognized that the 
ultimate sovereignty resided in the adult male people 
—with some exceptions, differing in different States, 
dependent upon color, race, condition of servitude, or 
property qualifications. This sovereignty was exer¬ 
cised by means of a general scheme of government 
under which (1) a constitution or fundamental law was 




1 Constitution of Michigan, 1909, Art. XVII. 
Constitution of Oklahoma, Art. V. 

Oregon, Laws of 1908, p. 244. 




3 


formulated by delegates chosen from among the quali¬ 
fied voters, in some cases empowered to ordain and 
establish the constitution as binding upon all the peo¬ 
ple, and in others merely to submit it, when formulated, 
for popular approval, under conditions making the 
same binding upon all, if affirmatively approved by 
the votes of a specified percentage of the qualified 
male voters; and 

(2) Within the limitations prescribed in such con¬ 
stitutions, laws were made by representatives periodi¬ 
cally chosen for such purpose, generally distributed 
between two legislative bodies having different ten¬ 
ures and qualifications; were executed by governors 
and other executive officials chosen for limited 
periods by popular vote, or appointed by those 
so chosen; and the laws were interpreted and 
applied by judges, generally appointed to hold office 
during good behavior, but subject to removal on 
joint address of both branches of the legislature, or 
in proceedings for impeachment. 

Differing in many details, the governments of all 
the thirteen States in their general outlines were con¬ 
formable to the foregoing description, and were all 
denominated republican. 

The Constitution provided in Section 3 of Article 

IV: 

New States may be admitted by the Con¬ 
gress into this Union; but no new States shall 


4 


be formed or erected within the jurisdiction of 
any other State; nor any State be formed by 
the junction of two or more States, or parts of 
States, without the consent of the Legislatures 
of the States concerned, as well as of the 
Congress.” 

By Section 4: 

“ The United States shall guarantee to every 
State in this Union a republican form of gov¬ 
ernment, and shall protect each of them 
against invasion; and on application of the 
Legislature, or of the Executive (when the 
Legislature cannot be convened), against do¬ 
mestic violence.” 

The general purpose of the provisions in Section 4 
was indicated in the debate over them in the Con¬ 
stitutional Convention. Mr. Randolph said they 
had two objects: (1) to secure Republican 
Government, (2) to suppress domestic commotions. 
He urged the necessity of both these provisions. 
Mr. Madison moved to substitute ‘Hhat the Constitu- 
“ tional authority of the States shall be guarantied to 
them respectively agst. domestic as well as foreign 
“ violence.” But other delegates objected to this as 
perpetuating the existing constitutions of the States, 
some of which Mr. Houston thought were very bad 
and ought to be revised and amended. In reply to a 
suggestion that the States sliould be left to suppress 
their own rebellions, Mr. Gorham thought it would 


5 


be very strange were a rebellion known to exist and 
tbe general government restrained from subduing it. 
At this rate,” he said, “ an enterprising Citizen might 
erect the standard of Monarchy in a particular State, 
might gather together partizans from all quarters, 
might extend his views from State to State, and 
threaten to establish a tyranny over the whole, 
the Genl. Govt, be compelled to remain an 
inactive witness of its own destruction. With 
regard to different parties in a State,” he humor¬ 
ously added, as long as they confine their disputes 
to words they will be hai’mless to the Genl. Govt, 
cfe to each other.” ' 

Chief Justice Taney, in delivering the opinion in 
Luther v. Borden ^ said that under the above quoted 
provision of the Constitution : 

“ it rests with Congress to decide what gov¬ 
ernment is the established one in a State. 
For as the United States guarantee to each 
State a republican government. Congress must 
necessarily decide what government is estab¬ 
lished in the State before it can determine 
whether it is republican or not. And when 
the senators and representatives of a State are 
admitted into the councils of the Union, the 
authority of the government under which they 
are appointed, as well as its republican charac- 


1 Records of the Federal Convention, Farrand, Vol. II., p. 48. 

2 7 Howard, 1-42. 




6 


ter, is recognized by the proper constitutional 
authority. And its decision is binding on every 
other department of the government, and could 
not be questioned in a judicial tribunal.” 

“The guaranty,” said Chief Justice Waite in a 
later case^ 

“ is of a republican form of government. No 
particular government is designated as repub¬ 
lican, neither is the exact form to be guar¬ 
anteed, in any manner especially designated. 
Here, as in other parts of the instrument, we 
are compelled to resort elsewhere to ascertain 
what was intended. 

“ The guaranty necessarily implies a duty on 
the part of the States themselves to provide 
such a government. All the States had govern¬ 
ments when the Constitution was adopted. In 
all the people participated to some extent, 
through their representatives, elected in the 
manner specially provided. These govern¬ 
ments the Constitution did not change. They 
were accepted precisely as they were, and it 
is, therefore, to be presumed that they were 
such as it was the duty of the States to pro¬ 
vide. Thus we have unmistakable evidence of 
what was republican in form, within the mean¬ 
ing of that term as employed in the Constitu¬ 
tion.” 

The general scheme of government running through 
the constitutions of all the eleven States which had 


* Minor V. Happersett, 21 Wall., 162, 175. 



7 


adopted constitutions at the time of the adoption of 
the Federal constitution, the salient outlines of which 
have been indicated, and even that embodied in or 
established under the charters of Connecticut and 
Rhode Island, constituted the American system of re¬ 
publican government which Chief Justice Fuller in 
In Re Duncan^ said was that whose distinguishing 
feature— 

is the right of the people to choose their own 
officers for governmental administration and 
pass their own laws in virtue of the legislative 
power reposed in representative bodies, whose 
legitimate acts may be said to be those of the 
people themselves.” 

The nature of the governments established in 
the States is, therefore a matter of necessary 
concern to Congress, for it must guarantee to 
each State a republican form of government, and 
as the National government must also protect every 
State against domestic violence, common prudence 
requires a careful scrutiny of the qualifications of a 
new applicant for admission to the family of States, 
in order to determine whether or not its eloctorate is 
properly qualified to maintain stable and peaceable 
conditions under the particular form of republican 
government which it proposes to adopt. 


1139 U. 8., 449, 461. 



8 


The Council of Safety, meeting at Halifax, Noi*th 
Carolina, on August 9, 1776, recommended to the 
people of that “ now Independent State,” the election 
of delegates to represent them in Congress, and that 
the greatest attention be paid to such election, particu¬ 
larly in view of this important consideration : 

That it will be the Business of the Dele¬ 
gates then Chosen not only to make Laws for 
the good government of, but also to form a 
constitution for, this State; that this last, as it 
is the Corner Stone of all Law, so it ought to 
be fixed and Permanent, and that according as 
it is well or ill Ordered, it must tend in the 
first degree to promote the happiness or Misery 
of the State.” ^ 

Among the principles which the political experience 
and theories of the colonists had supplied was “ the 
idea of a constitution superior to legislative enact- 
“ ments, and of certain natural rights secured by such 
a constitution.” ^ 

Unquestionably,” says Professor Geoi*ge Elliott 
Howard in his introduction to Judge Lobingier’s in¬ 
teresting work entitled “The Peoples Law, or Popular 
Participation in Law-Making,”—“ Unquestionably the 
“American people have made three great contributions 
“ to the political organism and to political science: the 
“ constitutional convention, the written constitution 


* Lobingier, The Peoples Law, p. 152. 

^ Dodd, The Revision and Amendment of State Constitutions, p. 2. 



9 


“ and constitutional law ” (p. XI). He further points 
out that while each of these institutions has an earlier 
history more or less distinct, yet that as a distinct 
political organ, with a special function to perform— 
an organ to be compared to a court, an executive, or 
“ a legislature—the constitutional convention was 
born and developed in America. As a representative 
body, created according to definite principles to dis- 
charge a single special function, that of enacting 
organic as opposed to mere statute law, it first made 
“ its appearance, fully differentiated, in the Massachu- 
“ setts convention of 1780 (the type of subsequent 
state constitutional conventions) and in the national 
convention of 1787. Since then it has gained its 
own law and its own literature, and it has taken 
its proper place in the Staatsrecht of the world.” 
In like manner, he says, while in English and Colonial 
history there were forerunners of constitutions. 
Nevertheless, the written constitution as an actu- 
“ ality, as a recognized and peimanent form of organic 
“law, is essentially the product of American political 
“ evolution ” (id., p. XII). 

Hence, Professor Stimson says : 

“ The Constitution is the permanent will of 
the people ; a law is but the tempoi ary act of 
their representatives, who have only such 
power as the people choose to give them.”^ 


^ “ The American Constitution,” p. 7. 



10 


It was in the light of these principles that the con¬ 
stitution of Massachusetts was framed in 1780—that 
constitution which has been described as the most 
perfect expression of the American theory as under- 
stood at the close of the Revolution,” and which 
has not only remained as the fundamental law of the 
great Commonwealth of Massachusetts to this day, 
but which has also served as a model for many others. 
It has called forth the highest encomiums from even 
the advocates of latter-day Democracy^ and must ever 
remain a monument to the patriotism, sagacity and 
statesmanship of the illustrious men who framed it. 

With even greater patience, skill and foresight 
the delegates to the National Convention of 1787 
wrought out a Constitution for the union of States. 
They sought to construct a fundamental law for the 
Union with the same view to permanence and stabil¬ 
ity as that with which the Massachusetts constitution 
was framed; in order to secure the blessings of liberty 
and good government, not only to themselves, but to 
their posterity. Justice Story said of it : 

“ The constitution unavoidably deals in gen¬ 
eral language. It did not suit the purposes of 
the people, in framing this great charter of our 
liberties, to provide for minute specifications of 
its powers, or to declare the means by which 
those powers should be carried into execution. 


1 See Lobingier, pp. 171, 177-9. 



11 


It was foreseen that this would be a perilous 
and difficult, if not an impracticable, task. 
The instrument was not intended to provide 
merely for the exigencies of a few years, but 
was to endure through a long lapse of ages, 
the events of which were locked up in the in¬ 
scrutable purposes of Providence. It could not 
be foreseen, what new changes and modifica¬ 
tions of power might be indispensable to effec¬ 
tuate the general objects of the charter; and 
restrictions and specifications, which, at the 
present, might seem salutary, might, in the 
end, prove the overthrow of the system itself. 
Hence, its powers are expressed in general 
terms, leaving to the legislature, from time to 
time, to adopt its own means to effectuate 
legitimate objects, and to mould and model the 
exercise of its powers, as its own wisdom, and 
the public interests should require.”^ 

In providing in the Constitution for the admission 
of new States, it was specified that they might 
be admitted as States “into this Union.” There 
was to be no discrimination between them and the 
original thirteen States. This was the deliberate con¬ 
clusion of the Convention. Various propositions 
looking to a different result were submitted.^ 
Gouverneur Morris suggested that “the rule of repre- 
“ sentation ought to be so fixed as to secure to the 
“ Atlantic States a prevalence in the national coun- 


' Martin v. Hunter, 1 Wheat., 304-26. 

® Elliott’s Debates, Vol. 5, pp. 155-6, 128, 228. 



12 


“ cils.” Elbridge Gerry expressed a like viewd It 
was proposed by another to apportion representation 
among the States “ upon the principles of their 

wealth and number of inhabitants.” But the con¬ 
trary view prevailed. 

What Congress understood this Constitutional pro¬ 
vision to mean was shown when Vermont and Ken¬ 
tucky, the first two States to be admitted were, by 
acts of Congress passed respectively March 4, 1791, 
and June 1, 1792, each, ‘^received and admitted into 
“ this Union as a new and entire member of the 

United States of America.” Tennessee was ad¬ 
mitted in 1796 as “one of the United States of 
“ America,” “on an equal footing with the original 
“ States in all respects whatsoever,” and substantially 
the same language was employed with respect to all 
the States subsequently admitted. 

It is the almost universal judgment of our people 
that the convention decided wisely in providing 
for the admission of States without discrimi¬ 
nation between the original and the later ones, 
but it is interesting to note in passing 
that the fundamental laws for the creation of the 
three other great federations of English speaking 
states—those of British North America, Australasia and 
South Africa—all contain provisions authorizing the 


Elliott’s Debates, Vol. 5, pp. 279, 310. 



13 


federal parliament to admit new states upon such con¬ 
ditions as it may deem expedient to impose, and to 
discriminate as between the original members of the 
union and those subsequently admitted. (^) 

No uniformity of procedure to be observed in tbe 
admission of States, was established by the Constitu¬ 
tion, nor has resulted from common practice. A con¬ 
stitution was adopted by the legislature of Vermont 
in March, 1787, which, after reciting that— 

‘‘it is absolutely necessary, for the welfare and 
safety of the inhabitants of this State, that it 
should be henceforth a free and independent 
State, and that a just, permanent, and proper 


^ Commonwealth of Australia Constitution Act, July 9, 1900, Chap. 
VI.— 


“ 121 , The Parliament may admit to the Commonwealth or 
establish new States, and may upon such admission or estab¬ 
lishment make or impose such terms and conditions, including 
the extent of representation in either House of Parliament, as 
it thinks fit.” 

“ Modern Constitutions,” by W. F. Dodd, Yol. I, p. 65. “ The Con¬ 

stitution of Australia,” by W. H. Moore, Melbourne, 1910. 

The British North America Act (March 29, 1867), Section 146— 

“ * * * on such terms and conditions in each case as 
are in the addresses expressed and as the queen thinks fit to 
approve, subject to the provisions of this act.” 

The British North America Act, 1871. The British North America 
Act, 1886. “ Modern Constitutions,” pp. 220, 221, 224. 

South Africa Act, 1909, Secs. 149-150— “ on such terms 
and conditions as to representation and otherwise in each case 
as are expressed in the addresses and approved by the King 
* * * .” Brand, “The Union of South Africa,” Oxford, 


1909. 



14 


form of government should exist in it, derived 
from and founded on the authority of the 
people only, agreeable to the direction of the 
honourable American Congress,” 

declared that 

‘‘We, the Representatives of the freemen of 
Vermont, in General Convention met, * * * 

do, by virtue of authority vested in us by 
our constituents, ordain, declare and estab¬ 
lish the following Declaration of Rights and 
Frame of Government, to be the Constitu¬ 
tion of this Commonwealth, and to remain in 
force therein forever unaltered, except in such 
articles as shall hereafter on experience be 
found to require improvement, and which shall, 
by the same authority of the people, fairly 
delegated, as this Frame of Government di¬ 
rects, be amended or improved, for the more 
effectual obtaining and securing the great end 
and design of all government hereinbefore 
mentioned.” ^ 

The Act of Congress approved February 18, 1791, 
merely recites that the State of Vermont has petitioned 
Congress “to be admitted a member of the United 
States,” and enacts that on March fourth, 1791, the 
said State “be received and admitted into this Union 
“ as a new and entire member of the United States of 
“ America.” 

The act admitting Kentucky into the Union, passed 


^ Thorpe’s American Charters, etc., Vol. 6, p. 3751. 



15 


February 4, 1791/ recited that the Commonwealth of 
Virginia had consented that the District of Kentucky, 
within its jurisdiction, should be formed into a new 
state, and that a convention of delegates, chosen by 
the people of the district, had petitioned Congress to 
consent, and it was thereupon enacted that the said 
district be formed into a new State, separate from and 
independent of Virginia, and be received and admitted 
into the Union “ as a new and entire member of the 

United States of America.” 

The act of June 1, 1796, declared that 

“ The whole of the territory ceded to the 
United States by the State of North Carolina 
shall be one State, and the same is hereby de¬ 
clared to be one of the United States of America, 
on an equal footing with the original States in 
all respects whatever, by the name and title of 
the State of Teonessee.”* 

A constitution had been adopted for that State in 
February, 1796, but no reference to it is contained 
in the act admitting the State into the Union. 

The first enabling act of Congress, or act specifically 
authorizing the inhabitants of a portion of terri¬ 
tory to form for themselves a constitution and state 
government upon which to be admitted into the 


1 Poore, Charters and Constitutions, Vol. I, p. 647. 

» “ “ “ “ “ II, p. 1676. 



16 


Union, was that providing for the admission of the 
State of Ohio, approved April 30,1802d It authorized : 

“ All male citizens of the United States, who 
shall have arrived at full age, and resided 
within the said territory at least one year pre¬ 
vious to the day of election, and shall have paid 
a territorial or county tax, and all persons hav¬ 
ing in other respects the legal qualifications to 
vote for representatives in the general assembly 
of the territory,” 

to choose representatives to form a convention, to first 
determine by a majority of the whole number elected 
whether it be expedient to form a constitution and 
state government, and if so, by ordinance to provide 
for electing representatives to form a constitution or 
frame of government, “ provided the same shall be re¬ 
publican and not repugnant to ” the ordinance for the 
government of the northwestern territory. The con¬ 
vention so authorized met and framed a constitution 
which was not submitted to the people,^ but Congress, 
by act approved February 19, 1803, declared that the 
State of Ohio had become one of the United States of 
America.^ 

The first effort to bind a new State to terms and 


^ Poore, Charters and Constitutions, Vol. II, p. 1453. 

* “ “ “ “ “ II, p. 1455. 

s “ “ “ “ “ II, p. 1464. 

^ The ordinance of 1787 for the government of the Northwestern Ter¬ 
ritory provided in Article V for the formation of states and their admis¬ 
sion into the Union, and that whenever any of said states should have 
sixty thousand free inhabitants therein, they should be at liberty to form 
a permanent constitution and state government, “Provided, the Consti- 
“ tuiion and government so to be formed shall be republican, and in 
“ conformity to the principles contained in these articles * * 



17 


conditions other than those to which it would be sub¬ 
ject in like manner as all other States under and by 
force of the provisions in the Constitution of the 
United States was expressed in tlie Enabling Act for 
Louisiana, passed February 20, 1811k 
That act authorized 

“ all free white male citizens of the United 
States, who shall have arrived at the age of 
twenty-one years, and resided within ” 

the territory described in the act, 

“ at least one year previous to the day of elec¬ 
tion, and shall have paid a territorial, county, 
district or parish tax: and all persons having 
in other respects the legal qualifications to vote 
for representatives in the general assembly of 
the said territory,-’ 

to choose representatives to form a convention to 
frame a constitution and state government for the 
people within the territory, and by section 3 that if it 
be determined to be expedient so to do, then the Con¬ 
vention might 

“ in like manner declare, in behalf of the 
people of the said territory, that it adopts the 
constitution of the United States; whereupon 
the said convention shall be, and hereby is, 
authorized to form a constitution and state gov¬ 
ernment, for the people of the said territory: 
Provided^ the constitution to be formed, in 
virtue of the authority herein given, shall 
be republican, and consistent with the con- 


1 2 Stat. 641. 



18 


stitution of tlie United States; that it shall 
contain the fundamental principles of civil and 
religious liberty; ^ ” 

besides certain other specified provisions. 

It was further provided that if such constitution 
should be adopted by the State, it should be trans¬ 
mitted to Congress, and if it were not disapproved by 
Congress at its next session after receipt thereof, the 
said State should be admitted into the Union upon 
the same footing with the original States. A con¬ 
stitution was adopted by the convention in conformity 
with the provisions of the Enabling Act, and, on 
April 8, 1812, Congress passed an act reciting com¬ 
pliance with the previous requirements, and declaring 
that the said State was admitted into the Union, 

on an equal footing with the original states, 
in ail respects whatever, by the name and title 
of the state of Louisiana : Provided^ That it 
shall be taken as a condition upon which the 
said state is incorporated in the Union, that 
* * * all * * conditions and terms 

contained in the third section of the act, the 
title whereof is hereinbefore recited, shall be 
considered, deemed and taken, fundamental 
conditions and terms, upon which the said 
state is incorporated in the Union.” ^ 

In the case of Permoli v. First Munici'pality ^ it 
was sought to have it adjudged that an ordinance 


1 3 Stats, at L., 642. 

2 3 Stats, at L., 703. 
® 3 Howard, 588. 



19 


of the First Municipality of the City of New 
Orleans prohibiting the carrying to or exposing in 
any of the Catholic churches of that Municipality 
any corpse, or the celebration by any priest of a funeral 
at such churches, and requiring all funeral rites to be 
performed in a designated obituary chapel was void, 
as being in violation of the provisions of the above 
mentioned Enabling Act as well as of the act ad¬ 
mitting the State into the Union upon condition that 
its constitution should contain the fundamental 
principles of civil and religious liberty. But the 
court pointed out that the Constitution of the United 
States makes no provision for protecting the citizens of 
the respective States in their religious liberties, 
leaving that subject entirely to the State constitutions 
and laws; that all that Congress intended by 
the Enabling Acts was to declare, in advance, 
to the people of the territories, the basic principles 
their constitutions should contain : 

(( * :i: ❖ every way proper under 

the circumstances ” said Mr. Justice Catron ; 

the instrument having been duly formed and 
presented, it was for the national legislature to 
judge whether it contained the proper prin¬ 
ciples, and to accept it if it did, or reject it if 
it did not. Having accepted the constitution 
and admitted the state, ‘ on an equal footing 
‘ with the original states in all respects what- 
^ ever,’ in express terms, by the act of 1812, 
Congress was concluded from assuming that the 


20 


\ 


instructions contained in the act of 1811 had 
not been complied with. No fundamental 
principles could be added by way of amend¬ 
ment, as this would have been making part of 
the state constitution ; if Congress could make 
it in part, it might, in the form of amendment, 
make it entire. The conditions and terms 
referred to in the act of 1812, could only 
relate to the stipulations contained in the 
second proviso of the act of 1811 involving 
rights of property and navigation ; and in our 
opinion were not otherwise intended ” (pp. 
609-10). 

A similar question arose in the case of Pollard's 
Lessee v. Hagan^^ where it was held that a declaration 
contained in the compact entered into between the 
United States and Alabama, when the latter state was 
admitted into the Union, as a condition to her admis¬ 
sion, would be void if inconsistent with the Constitu¬ 
tion of the United States. 

It was pointed out by the court that all con¬ 
stitutional laws are binding on the people in 
the new States and the old ones, whether they con¬ 
sent to be bound by them or not. 

“ Every constitutional act of Congress said 
Mr. Justice McKinley, is passed by the will 
of the people of the United States, expressed 
through their representatives, on the subject- 
matter of the enactment; and when so passed 


1 3 How. 312. 



21 


it becomes the supreme law of the land, and 
operates by its own force on the subject-matter 
in whatever state or territoiy it may happen 
to be.” (p. 224.) 

Notwithstanding these decisions, rendered in 1845, 
and the very clear provisions of the Constitution, Con¬ 
gress has proceeded in many subsequent acts for the ad¬ 
mission of new States to prescribe terms and conditions 
purporting to bind the new State, and which it re¬ 
quired the new State to accept by ordinance expressed 
to be irrevocable without the consent of the people 
of the State and of the United States.” Such condi¬ 
tions were imposed with respect to Missouri in 1821 
(3 Stat., 645), Nebraska in 1864 (13 Stat., 47), Colo¬ 
rado in 1875 (18 Stat., 474), North Dakota, South 
Dakota, Montana and Washington in 1889 (25 Stat., 
676), Utah in 1894 (28 Stat., 107), and Oklahoma in 
1906 (34 Stat., 267). 

The Enabling Act of the State of Oklahoma, passed 
June 16, 1906 (34 Stat. 267), provided that the con¬ 
stitution to be adopted for the new State 

“ shall be republican in form, and make no dis¬ 
tinction in civil or political rights on account 
of race or color, and shall not be repugnant to 
the Constitution of the United States and tlie 
principles of the Declaration of Independence.” 

The Capitol of the State, it was enacted, shall be 
temporarily at Guthrie, and shall not be changed 


22 


therefrom previous to 1913, but shall after that yeai 
be located by the electors of said State at an election 
to be provided for by the legislature. 

The act further required the convention to provide 
in the Constitution so to be adopted, 

Fiest. That perfect toleration of religious 
sentiment shall be secured, and that no in¬ 
habitant of said State shall ever be molested 
in person or property on account of his or her 
mode of religious worship, and that poly¬ 
gamous or plural marriages are forever pro¬ 
hibited. 

“Second. That the manufacture, sale, barter, 
giving away, or otherwise furnishing * ❖ * 

intoxicating liquors within those parts of said 
State, now known as the Indian Territory and 
the Osage Indian Keservation, and within any 
other parts of said State which existed as 
Indian reservations * ” shall be pro¬ 

hibited. 

Hi :}: 

“ Sixth. That said State shall never enact 
any law restricting or abridging the right of 
suffrage on account of race, color, or previous 
condition of servitude.” 

and finally, 

“ That the constitutional convention pro¬ 
vided for herein shall, by ordinance irrevoc¬ 
able, accept the terms and conditions of this 
Act.” 

The Convention was held, a constitution and an 
“ ordinance irrevocable ” adopted, and thereupon 


23 


Oklahoma was admitted to the Union by proclama¬ 
tion of President Poosevelt November 16, 1907. 
Three years later, on December 29, 1910, its legisla¬ 
ture passed an act providing for the removal of the 
Capitol from Guthrie to Oklahoma City notwithstand¬ 
ing its covenant with the United States not to so 
remove prior to 1913. Whatever might be said of 
the ethics of this act, the Supreme Court of the 
United States in the very recent case of Coyle v. 
Smithy decided May 29, 1911, held that the power to 
locate its own seat of government and to determine 
when and how it should be changed from one place to 
another was essentially and peculiarly a state power, 
which was acquired by Oklahoma when it was admitted 
into the Union on an equality with the other States, and 
that Congress might not, as a condition to the admis¬ 
sion of a new State, constitutionally restrict its au¬ 
thority or impose upon it any limitations not common 
to the other States of the Union. It may well hap¬ 
pen,” said Mr. Justice Lurton, in delivering the opin¬ 
ion of the court, 

“ that Congress should embrace in an enact¬ 
ment introducing a new State into the Union 
legislation intended as a regulation of com¬ 
merce among the States or with Indian tribes 
situated within the limits of such new State, 
or regulations touching the sole care and dis¬ 
position of the public lands or reservations 
therein, which might be upheld as legislation 


24 


within the sphere of the plain power of Con¬ 
gress. But in every such case such legislation 
would derive its force not from any agreement 
or compact with the proposed new State, nor 
by reason of its acceptance of such enactment 
as a term of admission, but solely because the 
power of Congress extended to the subject, 
and, therefore, would not operate to restrict 
the State’s legislative power in respect of any 
matter which was not plainly within the regu¬ 
lating power of Congress.” 

An interesting variation from the rules observed 
with respect to the admission of all other States 
is furnished by the case of the State of Utah. 
It is familiar history that the especial problem 
with which the national government had to grap¬ 
ple during the territorial days of Utah was the 
institution of polygamy or plural marriages, 
a problem which led to the drastic legislation of Con¬ 
gress repealing the charter of the Church of Jesus 
Christ of Latter Day Saints,” commonly known as 
the Mormon Church, the appointment of a receiver of 
its property and the application of it on principles of 
cy —all of which were sustained by the Supreme 

Court of the United States in the case of Mormon 
Church V. United States^. When, therefore. Con¬ 
gress came to deal with the establishment of a 
government for Utah upon its admission as a State 


1 136 u. S. 1. 



25 


into the Union, it provided for the formation of a 
constitution and state government for the proposed 
State which should be ‘‘republican in form and make 
“ no distinction in civil or political rights on account 
“ of race or color, except as to Indians not taxed, 
“ and not to be repugnant to the Constitution of the 
“ United States and the principles of the Declaration 
“ of Independence.” The Enabling Act further 
required the constitutional convention to provide by 
ordinance, irrevocable without the consent of the 
United States and the people of said State, among 
other things, 

“ That perfect toleration of religious sentiment 
shall be secured and that no inhabitant of said 
State shall ever be molested in person or prop¬ 
erty on account of his or her mode of religious 
worship : Provided^ That polygamous or plural 
marriages are forever prohibited.” 

The constitutional convention thereupon framed, 
and the people adopted a Constitution, which con¬ 
tained in itself, as Article 3 thereof, the above- 
mentioned required provisions, and declared that 
such provisions “ shall be irrevocable without the 
“ consent of the United States and the people of this 
“ State.” Nevertheless, by the twenty-third article of 
the Constitution, provision was made for the adoption 
of any amendment to the Constitution without ex¬ 
ception, by the vote of two-thirds of the members of 


26 


each house of the legislature, and of a majority of the 
electors of the State voting thereon. So that this so- 
called irrevocable ordinance thus stipulated in one 
part of the Constitution to be beyond change without 
the consent of the United States and the people of the 
State, under the subsequent articles may be modified 
or repealed at any time by the vote of a majority 
of each house of the legislature of the State, con¬ 
firmed by that of a majority of the qualified 
electors voting thereon. Perfect toleration of 
religious sentiment and the prohibition of 
polygamous or plural marriages sought to be accom¬ 
plished by Congress, therefore rest for their continu¬ 
ance, not upon any binding compact between the State 
and the general Government, but solely upon the con¬ 
tinued willingness of a majority of the qualified 
electors of the State to retain such provisions as a part 
of its fundamental law. 

It is well to keep clearly in mind the precise condi¬ 
tions under which new States are admitted into the 
Union, and the powers and privileges which they will 
possess after such admission, in determining whether 
or not a particular applicant shall be received into 
full fellowship in the nation. 

Prior to the admission of the State of Oklahoma no 
radical departure in the general scheme of State gov¬ 
ernment from the recognized common standard was 
proposed by the constitution of any new State. 


27 


Every one of them, judged by the principles above 
referred to, and tested by the general schemes em¬ 
bodied in the constitutions of the original States, could 
be fairly said to be republican in character, and to 
contain nothing inconsistent with the principles of the 
Federal Constitution. Everyone presented a govern¬ 
ment which in general conformed to the type which 
has become recognized as the American representative 
republican form of government. 

The Constitution of Oklahoma presented new con¬ 
siderations and was the occasion of much discussion 
and considerable hesitation over its approval. 

The special census of Oklahoma and Indian Terri¬ 
tory which were combined into the State of Oklahoma, 
taken as of July 1, 1897, showed a total population 
of 1,414,042. Of this number 334,035 were white 
males upwards of twenty-one years of age. The vote 
on the adoption of the Constitution was, for its 
adoption, 180,333; against it, 75,059; total, 253,392. 
The total vote was therefore upwards of seventy-five 
per cent, of the entire number of adult white males, 
and the total vote on the Constitution was nearly 
nineteen per cent, of the entire population. It obvi¬ 
ously met with the approval of the general body of 
the people of the State. By proclamation dated 
November 16, 1907, President Roosevelt declared that 

“ The said constitution and government of 
the proposed State of Oklahoma are republican 
in form, and that the said constitution makes 


28 


no distinction in civil or political rights on 
account of race or color and is not repugnant to 
the Constitution of the United States or to the 
principles of the Declaration of Independence, 
and that it contains all of the six provisions 
expressly required by Section 3 of the said act 
to be therein contained ” ^ * * * 

and declared it to be admitted as a State into the 
Union. 

Mr. Bryce in “ The American Commonwealth,” 
notes that the chief of the tendencies revealed by 
the Constitutions of the last forty years is for the 
Constitutions to grow longer. This, he says, is an 
absolutely universal rule.^ Woodrow Wilson says 
in his work ‘‘ The State: ” “ The danger “ is 

that constitution making will become with us only 
“ a cumbrous mode of legislation.” ^ In the Constitu¬ 
tion of Oklahoma it has become so. That Constitution 
is of inordinate length. It is divided into 24 articles 
and 312 sections, and it fills 70 closely printed 
octavo pages. A large part of its provisions are of 
matters which may be the proper subjects of legislation, 
but which have no place in the fundamental law, 
tested by established American standards. While 
providing for a bicameral legislature, it reserves to the 
people powers of initiative and referendum respecting 


1 35 Stat., Part 2, p. 2161. 
3 Vol. 1, p. 454, (3rd ed.). 
3 Ed. of 1899, p. 475. 



29 


legislation. Eight per cent, of the number of qualified 
voters are given the right to propose laws, and fifteen 
per cent, amendments to the Constitution. The 
referendum of any law passed by the legislature may 
be ordered by petition signed by five per cent, of the 
qualified voters. Percentages are to be based on the 
total number of votes cast at the last preceding general 
election for the state officer receiving the highest num¬ 
ber of votes cast at such election. A measure re¬ 
jected on referendum can not again be proposed 
within three years, except on petition of twenty- 
five per cent, of the qualified voters. The Con¬ 
stitution may be amended in any particular, if 
agreed to by a majority of the members elected 
to each house, and then voted for by a majority 
of all the electors voting upon the proposition. But 
it is provided that no convention shall be called by 
the legislature to propose alterations, revisions or 
amendments to the Constitution, or to pi’opose a new 
Constitution, unless the law for it be first approved 
by the people, on a referendum vote. The question 
of such proposed convention must be submitted to 
the people at least once in twenty years. These pro¬ 
visions, however, are not to impair the right of the 
people to amend i)y vote on an initiative proposition. 

The Oklahoma Enabling Act also provided for sub¬ 
mitting to the people of the territories of Arizona and 
New Mexico the question whether or not they should 


30 


become one State and, if so, then for a convention to 
frame a Constitution for such state and to provide for 
its admission into the Union. A vote was had on this 
proposition and the decision was in the negative. 

Subsequently, on June 20, 1910, an act was passed 
providing for the admission of the Territories as separate 
States.^ This act authorized the election of delegates 
in each Territory to a convention empowered to form 
a Constitution and provide a government for the 
proposed State, which Constitution ‘‘shall be repub¬ 
lican in form and make no distinction in civil or 
political rights on account of race or color, and shall 
not be repugnant to the Constitution of the United 
States and the principles of the Declaration of Inde¬ 
pendence.” 

The convention was further required to provide 
“ by an ordinance irrevocable without the consent of 
“ the United States and the people of said State—” a 
number of provisions. The Constitution when formed, 
was to be submitted for the approval of the qualified 
voters of the territory at a convention to be held to 
consider the same, and 

“ when said constitution and such provisions 
thereof as have been separately submitted shall 
have been duly ratified by the people of New 
Mexico as aforesaid a certified copy of the 


1 36 Stats., 557. 



31 


same shall be submitted to the President 
of the United States and to Congress for 
approval, together with a statement of the 
votes cast thereon and upon any provisions 
thereof which were separately submitted to 
and voted upon by the people. And if Con¬ 
gress and the President approve said con¬ 
stitution and the said separate provisions 
thereof, or, if the President approves the same 
and Congress fails to disapprove the same 
during the next regular session thereof, then 
and in that event the President shall certify 
said facts to the Governor of New Mexico, who 
shall, within thirty days after the receipt of 
said notification from the President of the 
United States, issue his proclamation for the 
election of the state and county officers,” etc. 

The same provision was made as to Arizona. 

When the result of the election should be certified 
to the President, he was required immediately to issue 
his proclamation announcing the result of said elec¬ 
tion so ascertained. 

And upon the issuance of said proclama¬ 
tion by the President of the United States, 
the proposed state of New Mexico shall be 
deemed admitted by Congress into the Union, 
by virtue of this Act, on an equal footing with 
the other States ”—^ 

and in like manner as to Arizona. 

There has been some discussion as to the precise 


1 36 Stat., 561. 



32 


function of the President under these provisions, and 
the criteria governing his action in approving or dis¬ 
approving the constitution to be submitted pursuant 
thereto. It is quite clear tbat Congress may not dele¬ 
gate to the President its power to determine whether 
or not a State shall be admitted into the Union. The 
power conferred by Article 4, Section 4 of the Con¬ 
stitution is “ New States may be admitted hy the Con¬ 
gress into this Union.” But that Congress may exer¬ 
cise a legislative power to take effect upon the ascer¬ 
tainment by the President of a specified fact, is well 
established. In such case the President is not exer¬ 
cising a delegated legislative power, but is the mere 
agent of the law-making department to ascertain and 
declare the event upon which its expressed will is to 
take effect.^ While therefore Congress may not em¬ 
power the President to admit a territory as a State 
whenever it shall present to him a constitution which 
meets with his individual approval, it may provide for 
the admission of a State whenever it shall adopt a 
constitution which shall be republican in form 
and make no distinction in civil or political 
rights on account of race or color, and shall 
not be repugnant to the Constitution of the 
United States and the principles of the Declaration 


^ See Field v. Clark, 143 U. S., 649, 692 ; Buttfield v. Stranaban, 192 
U. S., 470, 476. 



33 


of Independence ; and empower the President to ascer¬ 
tain and determine whether a particular constitution 
meets that description. If, therefore, the President 
should act pursuant to the provisions of the above- 
mentioned act, it would be presumably upon the ascer¬ 
tainment that the constitution presented met the re¬ 
quirements specified by Congress ; no other considera¬ 
tion being submitted for his determination. But Con¬ 
gress is not bound to approve the constitution and ad¬ 
mit a State, even though it do conform with the condi¬ 
tions specified in the Enabling Act. Congress may, 
because of the general nature of the institutions pro¬ 
vided in the proposed Constitution ; because of the 
conditions under which the Constitution was adopted; 
because of the character or number of the electorate 
upon whose vote it was adopted; or because of any 
other reason which it may deem sufficient, or without 
any reason, reject a proposed Constitution in toto^ or 
require it to be modified in any given particular as a 
condition to admitting the State. 

To be sure, except in so far as it might conflict with 
some provision of the Federal Constitution, the new 
State might immediately after its admission into the 
Union, amend its Constitution or adopt a new one, 
and Congress would be powerless to prevent. Its 
only protection against such an act would be to re¬ 
quire it to embody provisions so regulating the means 
of amendment as to ensure against hasty or illcon- 


34 


sidered changes. Thus, e, g. it might require the 
Constitution to provide that it should only be amended 
with the consent of at least a majority of all the 
qualified voters of the State. 

The Constitution of New Mexico was adopted by 
the Convention and submitted to the people of 
that Territory. The returns of the thirteenth 
census gave New Mexico, in 1910, a total popu¬ 
lation of 327,301, of which 76,233 were native- 
born males over twenty-one years of age, and 
4,269 naturalized foreign-born males over twenty- 
one years of age, making an apparent total voting 
population of 80,502. There were cast, for the Con¬ 
stitution 31,742 votes; against it 13,399 votes, or a 
total of 45,141 on the question of its adoption,—being 
about fifty-six per cent, of the total number of the 
qualified voters, and slightly less than fourteen per 
cent, of the total population. 

The Constitution so adopted, while exhibiting the 
tendency to undue length and minuta3 above noted, 
yet compares favorably in that respect with the Con¬ 
stitution of Oklahama. It contains twenty-two ar¬ 
ticles divided into 257 sections, and fills 38 ordinary 
printed octavo pages. 

Legislative power is vested in a legislature divided 
into two chambers and there is a provision reserving 
to the people the power to disapprove, suspend and 


35 


annul any law enacted by the legislature except 
appropriation and health laws, &c. 

This right must be exercised by petition signed by 
not less than ten per cent, of the qualified electors 
in each of three-fourths of the counties, and in the 
aggregate by not less than ten per cent, of the quali¬ 
fied electors of the State, as shown by the total num¬ 
ber of votes cast at the last preceding general 
election. The question of the approval or rejection 
of such laws must be submitted to the electorate 
at the next general election; and if a majority of 
the legal votes cast thereon, and not less than forty 
per cent, of the total number of such votes at such 
general election be cast for the rejection of such law, 
it shall be annulled and thereby repealed with the 
same effect as if the legislature had then repealed it. 
If such petitions be signed by not less than twenty- 
five per cent, of the qualified electors under each of 
the foregoing conditions, and filed with the secretary 
of state within ninety days after the adjournment of 
the session of the legislature at which the law was en¬ 
acted, the operation of the law shall be thereby sus¬ 
pended and the question of its approval or rejection 
shall be likewise submitted to a general vote at the 
next ensuing general election. If a majority of the 
votes cast thereon, and not less than forty per cent, of 
the total number of votes cast at such general elec- 


36 


tion be cast for the rejection of such law, it shall be 
thereby annulled; otherwise it shall go into effect. 
In the matter of amending the Constitution, there is a 
marked reaction towards earlier standards. The 
framers of this proposed Constitution evidently pro¬ 
pose that any changes in it shall be supported by an 
active public demand. They have therefore provided 
that the constitution may be amended by the vote of 
two-thirds of all members elected to each of the two 
houses of the legislature, voting separately, and sub¬ 
mitted to the electors of the state for their approval 
or rejection. But the proposal must be ratified by a 
majority of the electors voting thereon and by an 
aflSrmative vote equal to at least forty per cent, of all the 
votes cast at said election in the State in at least one- 
half of the counties thereof. In that event, and not 
otherwise, such amendment shall become a part of the 
constitution. Not more than three amendments may 
be submitted at one election, and if two or more 
amendments are proposed they shall be so submitted 
as to enable the electors to vote on each of them 
separately. Provision is also made for a constitutional 
convention to revise or amend the constitution at any 
time within twenty-five years by three-fourths vote of 
the members elected to each house ; after twenty-five 
years, by two-thirds votes of the members of each 
house, who shall then submit the question of calling 
a convention to the electors at the next general elec- 


37 


tion ; and if a majority of the electors voting at such 
election in the State and in at least one-half of the 
counties thereof, shall vote in favor of calling 
a convention, the legislature shall at the next 
session provide by law for calling the same. 
The compact with the United States required by 
the Enabling Act is embodied in the twenty-first article 
of the constitution, which is declared to be irrevocable 
without consent of the United States and the people of 
the State; and that no change or abrogation of its pro¬ 
visions in whole or in part shall be made by any 
constitutional amendment with the consent of Con¬ 
gress. 

This Constitution has received the formal approval 
of the President and is now before the Congress. 

In very marked contrast with the constitution of 
New Mexico, both as to the number of votes cast for 
its adoption, the percentage of the whole population 
voting with respect to it and the provisions of the 
constitution itself, is the constitution of Arizona, which 
was adopted by the people of that Territory on Feb¬ 
ruary 9, 1911. The returns of the Thirteenth Census 
give Arizona in 1910 a total population of 204,354, of 
which 155,550 are native born, and 48,804 foreign 
born. Of this population, 118,576 are males, and 
85,778 are females. The total number of white males 
over twenty-one years of age is 65,133, of which num¬ 
ber 39,427 are native born and 5,896 naturalized 


38 


citizens, so that the total voting population is, ap¬ 
parently, 45,323. There were cast for the Constitution 
12,187 votes, against it 3822 votes, or a total 
of 16,009 on the question of its adoption, being about 
thirty-five per cent, of the total number of qualified 
voters, and slightly less than eight pei* cent, of the 
total population. The vote for the constitution was 
by less than twenty-seven per cent, of the voting pop¬ 
ulation, and about six per cent, of the total population. 

Congress may well consider whether or not a 
Territory in which only thii‘ty-five per cent, of the 
qualified electors exhibit sufi&cient interest to vote 
upon the adoption of the fundamental law on which 
it seeks admission to the Union, gives evidence of that 
capacity for self-government which is so essential to 
the maintenance of free institutions. 

The constitution thus adopted by the vote of this 
small percentage of the people of Arizona contains 
provisions without precedent in any constitution ever 
submitted to Congress for approval by an applicant 
for admission to statehood. While declaring gener¬ 
ally that the powers of the government shall be di¬ 
vided into three separate departments, the legislative, 
the executive and the judicial, and vesting the legis¬ 
lative authority in a legislature consisting of a senate 
and house of representatives, provision is made for 
the exercise of legislative power by small percent¬ 
ages of the qualified electors Under the power 


39 


to ioitiate legislation, ten per cent, of the qualified 
electors are authorized to propose any measure, and 
fifteen per cent, to propose any amendment to the 
constitution. Under the referendum power, five 
per cent, of the qualified electors may order the 
submission to the people at the polls of any meas¬ 
ure, or of any item, section or part of any measure 
enacted by the legislature, except public health laws, 
etc.; and no act passed by the legislature shall become 
operative for ninety days after the close of its session, 
in order to allow opportunity for referendum petitions 
to be filed. Any measure referred to a vote of the 
qualified electors under the initiative or referendum 
shall become a law when approved by a simple majority 
of the votes cast thereon; and the veto power of the 
governor shall not extend to initiative or referendum 
measures approved by a majority of the qualified 
voters. The total number of all votes cast for all can¬ 
didates for governor at the last preceding general elec¬ 
tion is made the basis on which the number of qualified 
electors recpiired to sign the petition shall be com¬ 
puted. These rights of initiative and referendum are 
also reserved to the qualified electors of every incor¬ 
porated city, town and county, as to all local, city, 
town or county matters on which such incorporated 
cities, towns, or counties shall be empowered by 
general laws to legislate. Under fhe power of the 
initiative, fifteen per cent, of the qualified electors 


40 


may propose measures on such matters, and 
ten per cent, may propose the referendum 
on legislation enacted by or within such city, 
town, or county. If two or more conflicting 
measures or amendments to the constitution shall be 
approved by the people at the same election, the 
measure or amendment receiving the highest number 
of votes shall prevail in all particulars as to which 
there is conflict. 

It will be observed that there is no requirement 
respecting the minimum number of votes which must 
be cast in order that an act of the legislature may be 
overruled, or a law directly enacted upon the initiat¬ 
ive, or the constitution amended in any particular. 
All that is required is that the measure shall be pro¬ 
posed or the machinery set in motion by the above- 
mentioned small percentages of the qualified electors 
who voted for governor at the previous election, and 
then if a majority of the votes cast at the popular 
election are in favor of the proposed action or measure, 
it becomes effective, no matter how small a proportion 
of the total electorate of the State may be the vote, 
and without the slightest regard to its territorial dis¬ 
tribution. Thus, if we should assume that the total of 
the vote cast for all candidates for governor at the 
last preceding election was that cast upon the propo¬ 
sition to adopt this proposed constitution, viz., 16,009, 
then the constitution could be amended on the proposal 


41 


of fifteen per cent, of tliat number, or 2402 votes— 
tbat is less than one and A^hs per cent, of the whole 
population, or about five and i per cent, of the whole 
body of qualified electors of the State, and carried by a 
majority of the 16,009 votes cast, that is, by 8,005 
votes,—or, indeed, for that matter, by any smaller 
number which might constitute a majority of the votes 
cast on the proposition to amend. 

“ The end of the institution, maintenance 
and administration of government,” runs the 
preamble to the Constitution of Massachusetts, 
‘‘is to secure the existence of the body-politic, 
to protect it, and to furnish the individuals 
who compose it with the power of enjoying, in 
safety and tranquillity, their natural rights and 
the blessings of life * * *. It is the duty 

of the people, tberefore, in framing a constitu¬ 
tion of government, to provide for an equitable 
mode of making laws, as well as for an impartial 
interpretation and a faithful execution of them; 
that every man may, at all times, find his secu¬ 
rity in them.” ^ 

The uncertain sands of shifting popular inclination, 
upon which the security of life, liberty and property 
would depend under the Constitution of Arizona, are 
far remote from the conceptions of the framers of 
either the Massachusetts Constitution of 1780 or the 
Constitution of the United States. 


^ Poore’s Charters and Constitutions, p. ^56. 




42 


-for the district for which he is elected to such office, 
which district may include the whole State. Electors 
to the number of twenty-five per cent, of the vote cast at 
the last preceding general election for all of the candi¬ 
dates for the office held by such officer may, by petition, 
demand his recall. This petition must contain a general 
statement in not more than two hundred words of the 
grounds of such demand, and unless the officer 
against whom it is directed shall offer his resigna¬ 
tion within five days after it is filed, a special elec¬ 
tion must be ordered, to be held not less than twenty 
nor more than thirty days after such order, to deter¬ 
mine whether he shall be recalled. On the ballots 
at said election shall be printed the reasons as set 
forth in the petition for demanding his recall, and 
in not more than two hundred words, the ofiicer'^s 
justification of his course in office. Unless he other¬ 
wise request, in writing, his name shall be placed as 
a candidate on the official ballot without nomination. 
Other candidates for the office may be nominated to 
be voted for at such election, and the candidate who 
shall receive the highest number of the votes cast shall 
be declared to be elected for the remainder of the 
term; and thereupon, if the incumbent does not re¬ 
ceive the highest number of votes cast, he shall be 
deemed to be removed from office, upon qualification 
of his successor. Such recall petition may be circu¬ 
lated against any officer after he has held his office 




43 


But this is not all. Every public officer in the State 
of Arizona holding a public office, either by election 
or appointment; whether it be executive, legislative or 
judicial, is made subject to recall by qualified electors 
for a period of six months, and against a member of 
the legislature at any time after five days from the be¬ 
ginning of the first session after his election. 

After one recall petition and election no 
further recall petition shall be filed against 
the same officer during the term for which he 
was elected, unless petitioners signing such 
petition shall first pay into the public treasury 
which has paid such election expenses all ex¬ 
penses of the preceding election.” 

Subject only to this provision, any number of recall 
petitions may be directed at the same official until his 
ejection shall have been secured. 

Provision is also made for amending the constitution 
by a vote of a majority of the members elected to each 
of the two houses of the legislature and submission to 
popular vote. No convention may be called by the 
legislature to propose amendments to the constitution, 
or a new constitution, unless the law providing for 
such convention shall first be approved by the people 
on a referendum vote at a regular or special election; 
and any amendments, alterations, revisions, or new 
constitution, proposed by such convention shall be 
submitted to the electors at a general or special elec- 






44 


tion and be approved by the majority of the electors 
voting thereon before the same shall become effective. 

The advocates of the scheme of so-called popular 
government embodied in the Arizona constitution 
have vigorously opposed the approval of that of New 
Mexico as reactionary, and have as strenuously asserted 
the republican character of the plan proposed for 
Arizona. It is an interesting paradox that the whole 
tendency of modifications in the established forms of 
republican government advocated as accomplishing a 
greater popular participation in government is to con¬ 
fer power upon a small minority of the people to con¬ 
trol not only the making of laws, but of constitutions. 

The postulate of American political faith is that 
governments derive their just powers from the con¬ 
sent of the governed. Taken in the literal, etymo¬ 
logical sense of the terra, no government has ever 
existed—certainly not on this continent—which was 
framed with the active conscious agreement of all 
those who were to be subject to it; while, of course, 
all government has rested, and must necessarily rest 
upon the more or less passive acquiescence or assent of 
those governed. 

The Massachusetts constitution of 1780 recites 
that— 


“ The people of this commonwealth have the 
sole and exclusive right of governing themselves 
as a free, sovereign, and independent State,” 


45 


and that ‘‘ the people alone have an incontest¬ 
able, unalienable and indefeasible right to insti¬ 
tute government, and to reform, alter, or totally 
change the same when their protection, safety, 
prosperity, and happiness require it.” ' 

Yet the right under that constitution to choose repre¬ 
sentatives to the general assembly is limited to male 
persons “ being twenty-one years of age, and resident 
in any particular town in this commonwealth, for 
the space of one year next preceding, having a free- 
hold estate within the same town, of the annual in- 
come of three pounds, or any estate of the value of 
sixty pounds.” 

The right of suffrage, it was held by the Supreme 
Court of the United States in Minor v. Happersett^^ is 
not a necessary incident to citizenship of the United 
States, and whether women shall be allowed to vote 
or no is a matter left entirely to the discretion of the 
State governments. In his opinion in that case. Chief 
Justice Waite points out that when the Federal Con¬ 
stitution was adopted, in no State were all the citizens 
permitted to vote, and he summarizes® the various 
qualifications required in the different States as a con¬ 
dition to participation in elections. In no instance were 
women, married or single, given the right of suffrage. 
They were expressly excluded from suffrage in nearly 


' Poore’s Charters and Constitutions, 958. 
» 21 Wall., 163. 

See p. 172 et seq. 



46 


all the States by the express provision of their con¬ 
stitution and laws. In all,” to use the language of 
the Chief Justice, “the people participated to some 
“ extent, through their representatives elected in the 
“ manner specifically provided.” 

The fact is, that even government by folkmoot or 
town meeting, was government by a certain number of 
the community, less than all, assuming to represent 
those who from motives of policy or tradition were 
excluded from participation by those who were strong 
enough to exclude them. So at an early date, 
in this country, the unwieldy nature of gov¬ 
ernment by a large assembly of the adult male 
population, possessing agreed qualifications to en¬ 
title them to participate, brought about the plan 
of choosing a practicable number of delegates to meet 
and enact “such laws and ordinances as shall be 
“judged to be good and wholesome for the whole.” 

This plan of the qualified electorate choosing repre¬ 
sentatives to make laws, naturally led to the formu- 
lajbion of charters or constitutions prescribing the rules 
and limitations within which such representatives 
should act, and in nearly all of these constitutions, 
certain inalienable rights are enumerated which must 
be preserved and which law makers must not trench 
upon or impair. 

In the framing of the early State constitutions, as 
indeed in most of the later ones, care was observed to 


47 


secure their approval by as large a number of the adult 
male population as was practicable. In general, the del¬ 
egates were chosen by votes at a special election, and 
after their work was completed it was submitted to 
the qualified electors for their assent. The sense of 
obligation felt by delegates engaged in the high duty 
of framing the fundamental law is expressed in the ad¬ 
dress issued by Mr. Bowdoin, the President of the 
Massachusetts Constitutional Convention of 1779, 
enjoining upon the members of the Convention the exer¬ 
tion of their best abilities in framing “ a new and a good 
‘‘ Constitution of Government,” and stating that as 
the framing it, and its acceptance, when framed, must 
greatly depend on the collective wisdom of the Con- 
vention being had, in the final determination on every 
“ part of it, but which cannot be had without a 
general and constant attendance,” he was directed 
by vote of the Convention “to enjoin upon the mem- 
“ bers, from its necessity and importance^ A CON- 
“STANT AND GENERAL ATTENDANCE ac- 
“ cordingly.” ^ 

It is not to be wondered that a constitution so 
framed should have remained to this day with but 
little amendment as the living fundamental law of 
the great Bay State. 

In order to secure the widest possible popular 
concurrence in the choice of delegates to the Penn- 


1 Lobingier, pp. 172-3. 



48 


sylvania convention of 1777, commissioners were ap- 
})ointed by the assembly 

“To go to the house or place of residence of 
each and every freeman entitled to vote for 
members of General Assembly within their 
respective townships, buroughs, wards or dis¬ 
tricts, or to take some, other opportunity of 
meeting with them,”' 

to secure from every freeman, in writing, his vote or 
answer to the proposition, which should be put in a 
box provided for the purpose and returned to the 
general assembly.' 

Unfortunately, the British invasion suspended the 
carrying out of this rather novel but highly commend¬ 
able plan; but subsequently, by a more orthodox 
method, delegates were chosen by popular election 
who prepared the constitution which remained the 
fundamental law of Pennsylvania until 1838. 

Framed, therefore, by delegates especially chosen 
for the purpose, with the design of establishing a per¬ 
manent and stable form of government, until a recent 
date the constitutions of all the States avoided detail, 
and laid down merely the general outlines of the frame 
of government within whose limits details were to be 
supplied from time to time by the legislature consti¬ 
tuted according to its terms; and provisions were em¬ 
bodied with respect to amendments calculated to 
secure deliberate matured action, and especially to re- 


^ Lobingier, p. 151. 



49 


quire the active concurrence in the changes proposed 
of an actual majority of the qualified electors. 

Jefferson’s proposed constitution for Virginia con¬ 
tained a provision that none of the fundamental laws 
and principles of government should be repealed or 
altered but by the personal consent of the people at 
meetings held in the respective counties, the people of 
two-thirds of the counties to give their suffrage for 
any particular alteration.^ 

This Jeffersonian theory of making the alteration of 
the constitution dependent not only upon a certain 
percentage of the vote cast, but upon the consent of a 
specified percentage of the geographical subdivisions 
of the State, as we have seen, is embodied in the pro¬ 
posed constitution of New Mexico. The first con¬ 
stitution of Georgia required the consent of a majority 
of the counties to any amendment. The Massachusetts 
constitution of 1780 was to take effect upon a vote of 
two-thirds of the free whites voting upon it. 

In general, the State constitutions prior to the 
very recent ones, required the vote of at least a 
majority, sometimes of two-thirds of each of the 
houses of the legislature in favor of a proposed 
amendment, sometimes at two successive sessions 
of the legislature, and then submission thereof 
to popular vote and its adoption by at least 
a majority of all votes cast with respect to the 


^ Lobingier, p. 146. 



50 


proposition, sometimes by a certain proportion of 
the entire qualified electorate. There would seem 
to be little use in choosing a convention of delegates 
to frame a constitution, who, after careful consideration 
and patient work, submit the same to popular vote, if, 
after adoption, no stability or degree of permanency is 
secured, but the results may be changed as readily, and 
perhaps more readily, than an ordinary act of the 
legislature. The system which was the evolution of 
American growth and institutions; the distinctively 
American plan of government under fundamental law 
framed with a view to its continuance unless changed 
with equal solemnity, is absolutely at variance with 
the new scheme of government by initiative, referen¬ 
dum and recall embodied in the constitutions of 
Oklahoma and Arizona: a scheme which, as Mr. 
Bryce has pointed out in “ The American Common- 
“ wealth,” ^ first made its appearance in modern 
Europe as a provision of the French constitution 
framed by the national convention in 1793, and 
which has peculiarly flourished as a feature of the 
government of Switzerland.^ The real question pre¬ 
sented is whether or not all the people shall be 
governed by representatives chosen for the purpose in 
an orderly, regular way, acting in accordance with a 
well matured fundamental law, adopted b}^ the active 


1 Vol. 1, p. 465. 

* 2 Dodd, “Modern Constitutions,” p. 258, 



51 


concurrence of at least a majority of the adult male 
population; or by self-constituted representatives act¬ 
ing without direct responsibility under the haphazard 
system of initiative or referendum at the instance of a 
small minority of the electorate. 

By the constitution of Oklahoma, suffrage is re¬ 
stricted to male citizens, except at school district elec¬ 
tions or meetings; and by a recent constitutional 
amendment^ adopted in deliberate disregard of its 
solemn compact with the United States, all negroes 
have been, in effect, disfranchised; so that out of a 
a total population of 1,414,042 (according to the 1907 
census), not exceeding 334,035 white males of the age 
of twenty-one years and upwards, are permitted to 
vote. Fifteen per cent, of this number, or 50,105 
electors, may set in motion a proposition to amend the 
fundamental law, which will become effective if ap¬ 
proved by a majority of those voting on the proposi¬ 
tion, no matter how small a percentage of the whole 
population or of the qualified voting population that 
number may be. 

The proposed constitution of Arizona also restricts 
the suffrage to male citizens of the United States of 
the age of twenty-one years or over, who shall have 
resided in the State one year immediately preceding 
the election (Art. VII, sec. 2), so that, out of a 


1 Amendment as section 4A of Article 3 of Constitution Session Laws 
1910, p. 285. See also Atwater vs. Hassett, 111 Pacific Rep., 812. 



5‘2 


total population of 204,354, according to the 
last census, not exceeding 45,323 white males 
of twenty-one years and upwards are permitted 
to vote. Fifteen per cent of this number, or 
6,799 electors, may set in motion a proposition to 
amend the fundamental law, which will become opera¬ 
tive if approved by a majority of those voting on 
the proposition,—no matter how small that number 
might be. 

In other words, under the scheme of government 
proposed in the constitution of Arizona, as in that of 
Oklahoma, all the fundamental rights of person and 
property which are not specifically guaranteed and 
secured by the Constitution of the United States, 
but which are left as the subjects of State concern— 
such as the right of religious toleration—are at the 
mercy of a small minority of the population. Of 
course, it may be said that eternal vigilance is the 
price of liberty, and that citizens who fail to assert 
their rights and to be vigilant in their protection, 
cannot complain if they find them undermined, im¬ 
paired or destroyed. Professor Lobingier argues 
that statutes which require the concurrence of a 
majority of the electors in constitutional changes 
should be construed so as to require only the 
consent of a majority of those voting on a proposition 
—not of all the electors. He says : 

“ From the standpoint of public policy, how¬ 
ever, it would seem that those decisions are 


53 


soundest which construe the language where- 
ever possible as requiring only a majority of 
those actually participating in the vote on the 
submitted proposition. To declare a constitu¬ 
tion or amendment rejected by reason merely 
of the indifference of those who, while in at¬ 
tendance at the polls, are so unmindful of the 
privilege of popular ratification as to neglect its 
exercise when opportunity offers, is certainly 
to impair its benefits and often to impair its 
employment when not needed.” (p. 330). 

But if the constitution is the expression of the will 
of the whole people, is it not rather to be presumed 
that, if a majority of the people really feel that a 
change in the fundamental law is necessary, they 
will affirmatively so express themselves. Let it be 
necessary to secure the vote of an actual majority of 
the qualified voters to a proposed constitutional 
amendment, and, if the change is really desirable in 
the interest of all the people, that fact will be made 
manifest, and the vote will be secured. The anxiety 
of the advocates of the referendum, initiative and re¬ 
call to have them operative at the instance of small 
minorities of a restricted electorate, furnishes abundant 
evidence that it is they—not those who oppose these 
innovations—who do not trust ‘‘ the people ” or even 
a majority of the people; but that, under the guise of 
serving the people, they are seeking to lay hands on 
the power of the people and to arrogate to themselves 
the popular tribunate. 


54 


Bearing in mind the practical workings of everyday 
life in a busy, prosperous, commercial community, it 
is apparent that a large number of the community, 
and that the most productive portion of the community, 
do not, and cannot, give constant attention to the 
affairs of government. Under a scheme of govern¬ 
ment such as that proposed in the Arizona constitu¬ 
tion, a small minority of the qualified electors organ¬ 
ized to accomplish any particular purpose can mould 
the laws, or even the constitution, to accomplish their 
purposes before the great majority of the electors 
are aware of what is going on. The propositions 
submitted to the electors under the scheme of initiative 
and referendum are fixed and put before the voters 
without the advantage of the examination, discussion 
and debate which have been, throughout the whole his¬ 
tory of English speaking peoples, the crucible in which 
legislative projects have been tried out before enact¬ 
ment into law. It is an abuse of language to call 
such a scheme of government “ popular.” It is an 
attempt to create a government of all the people, by a 
minority of the people, for a small minority of the 
people. To adopt it, would be to substitute for the 
institutions which are the growth and evolution of 
centuries of American experience, the devices of 
French revolution and Swiss socialism. 

16296] 


LBJa’i2 






















